Attorney-Client Privilege at Risk in Investigations and Audits

Preserving Confidential Information, Safeguarding Work Product, Avoiding Inadvertent Disclosure

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, September 14, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to corporate counsel for protecting the attorney-client privilege when responding to a government investigation or audit. The panelists will offer their insights into who is covered by the privilege and how the privilege can be inadvertently waived.

Description

Businesses must protect the confidentiality of corporate information when providing documents to independent auditors or government investigators. Inadvertently submitting records protected by the attorney-client privilege can result in waiver of the privilege.

Several district court rulings indicate a trend towards increased limits on attorney-client and work product protection. This is true especially with regard to the selective waiver doctrine and communications involving a company and its consultants, board members and others.

Outside auditors, government agents and potential partners demand a wide variety of sensitive information from businesses. Our panelists will discuss how counsel can guide a company in protecting these privileges during an outside audit or investigation, when conducting an internal investigation, and in negotiating deals.

Listen as our authoritative panel of legal specialists examines the issues surrounding the attorney-client privilege in investigations and audits, including who has the privilege, how it can be inadvertently waived, and how to shield information. The panel will discuss their insights and best practices to preserve the privilege.

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Outline

  1. Who has the privilege in internal investigations/audits
    1. Privilege considerations when interviewing employees
    2. Privilege within the corporation during the investigation
    3. Protecting communication among management
    4. Privilege and former employees
    5. Audit committees and reporting to the board
    6. Third parties in investigations
    7. The Garner doctrine—access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
  2. Waiver
    1. Scope of waiver (including Rule 502)
    2. Types of waiver
    3. Disclosure of investigative report
    4. Waiver to governmental agencies
  3. Disclosure to a company’s auditors without waiving the company’s privileges
    1. Auditor requests
    2. Risk of waiver
    3. The “treaty”
    4. Recommendations
  4. Best practices for preserving the privilege
    1. Understanding scope of privilege in relevant jurisdiction
    2. Counsel engaged from outset of investigation
    3. Structure and design investigation to take full advantage of scope of attorney-client privilege in the relevant jurisdiction
    4. Documentation authorizing investigation and describing purpose to gather information to be used in advising company about potential liability and defense of potential lawsuits
    5. Clarification of in-house counsel’s role
    6. Retention of outside counsel
    7. Documentation and labeling of confidential communications and documents
    8. Education/training
  5. Cross border challenges
  6. Controlling privileged material to reduce possibility of waiver
    1. Segregate facts from documents that contain attorney work product
    2. When facing a demand for privileged material, negotiate protection from future third-party discovery
  7. Limited waiver agreements
    1. Do not acquiesce when privilege rights are contested
    2. Joint defense agreements
    3. Control drafting of and access to investigation report

Benefits

The panel will review these and other key issues:

  • What systems should corporations and their counsel implement to identify and protect privileged information?
  • How can a company maintain the confidentiality of sensitive information when conducting an internal investigation—or during an audit or investigation by third-party investigators?
  • What are the key business and legal best practices for counsel and corporations to preserve the privilege?

Faculty

Stuart M. Altman
Stuart M. Altman
Director of Corporate Legal Investigations
Intel

Mr. Altman has responsibility for global investigations involving bribery and corruption, antitrust, financial fraud,...  |  Read More

Greenwald, David
David M. Greenwald

Partner
Jenner & Block

Mr. Greenwald is a litigator in high-stakes, complex disputes relating to commercial matters, cross border...  |  Read More

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